Court of Appeal case will decide whether the Welsh Government has robbed councillors of planning powers

Martin Shipton

Court of Appeal judges are expected to decide before Christmas whether Welsh council officers can overrule democratically elected councillors and force them to accept local planning policies they disagree with.

The case the judges will adjudicate on focusses on whether councillors in Wales have less power than their counterparts in England over planning policy.

Councillors in Wrexham voted twice against the adoption of a Local Development Plan (LDP) they believe would see far more private homes built in the county borough than is needed. But senior council officers would not accept the decision and ended up collaborating with developers to thwart the councillors’ wishes.

The Court of Appeal in London heard arguments from appellant Cllr Marc Jones, leader of the authority’s Plaid Cymru group, on behalf of the majority of councillors opposed to the LDP including council leader Mark Pritchard) and opposing arguments on behalf of Wrexham Council officers, the Welsh Government and four leading housing developers.

Greenfield sites

The LDP allocates land over a 15-year period for housing, employment, leisure and other uses. In this case it was allocating greenfield sites on three sides of Wrexham for large housing developments that amounted to 3,635 homes. The plan would take up land that separates the city from neighbouring villages. In total, land for 7,700 homes was allocated in the draft LDP.

During the hearing it was claimed that Welsh councillors do not have the same democratic rights as English councillors. In England there is – all parties agreed – a clear right for councillors to vote to reject a local plan, even after a government inspector has examined it and found it sound. However, the developers and officers argued at the Court of Appeal that the Welsh Government had amended planning laws in Wales to remove this democratic discretion from elected Welsh councillors.

‘No choice’

The government’s submission in the court was that councillors in Wales had no choice in law but to vote to accept “their” local plan once it had been examined and deemed sound by Welsh Government planning inspectors.

The counter submission by barrister Andrew Parkinson on behalf of Cllr Jones, included the striking statement: “Legislation requires a resolution. A resolution requires a vote. A vote requires a choice.”

Forcing councillors to have a debate and then vote when there is only one possible way to lawfully vote would, Mr Parkinson argued, render the vote a “charade”.

The three judges asked about an email exchange in which the council’s monitoring officer Linda Roberts said that failure to vote for the LDP could lead to councillors facing financial penalties, seizure of assets and ultimately jail. The judges asked whether councillors were obliged to adopt a plan even if new facts emerged after examination that fundamentally changed the basis on which the plan was examined. The claim was made by the Welsh Government that councillors must nonetheless adopt the plan in Wales, but councillors in England on the contraryt had a discretionary choice to reject the plan as being out-of-date.

Planning concerns

The barrister representing council officers initially asked the court to understand “one fact” – namely, that when Wrexham councillors rejected the local plan at meetings in April and June 2023 they had put forward no planning reasons for doing so. The judges turned to the transcripts of council meetings and noted that serious planning concerns had indeed been raised by Wrexham councillors.

A legal argument also took place over subtle differences in the wording of legislation that applies to England and that applying to Wales, with barristers opposing Cllr Jones claiming that in England the statement that the council “may” adopt an LDP gives them discretion over whether to do so or not, while in Wales the statement that they “may” adopt the plan means in effect that they must do so.

The barrister representing the Welsh Government conceded in response to the judges’ questions that the government in Cardiff Bay still has, under the current legislation, the “default power” to impose an LDP on any local authority where a local council has voted to reject it. The government had chosen not to use that default power in Wrexham’s case, despite the fact that it would have made it clear who was ultimately democratically accountable for the plan’s adoption. The government also chose not to engage with Wrexham council, whose leader had asked for a meeting after the second vote against adoption.

Instead, a consortium of seven (now four) large housing developers took the council to court in a bid to reverse the democratic vote. This was successful in the High Court in November 2023 and it’s this ruling that is currently under challenge at the Court of Appeal. It was not explained why several developers had left the case in the meantime.

Wrexham’s current plan is due to run from 2013-28, so only three years are left before a new plan will be needed.

Cllr Marc Jones said: “Councillors took this case to the Court of Appeal because we believe it’s vital to stand up for our communities and for local democracy. We did not believe it was right to be forced to vote in a certain way under threat of jail, as was the case last year.

“It’s not just a point of law – it’s about whether large housing estates are able to be built on green field sites without any accompanying infrastructure or to meet local housing need.

“It’s clear from the Court of Appeal that Welsh councillors are at a disadvantage. We have fewer powers than our counterparts in England when it comes to Local Development Plans. The Labour Government has accumulated those powers to itself and yet, in Wrexham’s case, refuses to make a decision either way. It has chosen to hide behind the developers’ legal actions because it knows that people affected by these huge housing developments would punish them.”